Jones v. Citibank, N.A. et al

Middle District of Florida, flmd-8:2016-cv-01404

ORDER approving and adopting {{5}} REPORT AND RECOMMENDATIONS; denying without prejudice {{2}} MOTION for leave to proceed in forma pauperis; dismissing without prejudice {{1}} Complaint. Signed by Judge James D. Whittemore on 7/14/2016. (AO)

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PagelD 59 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION BRENDA LEE JONES, Plaintiff, Case No: 8: 16 - cv - 1404 - T - 27TBM CITIBANK, N. A ., DENNIS DRUMMOND and COLLEEN DRUMMOND, Defendants. ORDER BEFORE THE COURT is the Report and Recommendation of the Magistrate Judge recommending that Plaintiff's request for leave to proceed in forma pauperis (Dkt. 2) be denied without prejudice (Dkt. 5) and that Plaintiff's Complaint be dismissed, but allow Plaintiff to file, within twenty days, an amended complaint. Plaintiff has not filed objections and the time in which to do so has passed. ' Upon consideration, the Report and Recommendation is adopted as the opinion of the Court, Plaintiff's request to proceed in forma pauperis is denied without prejudice, and Plaintiff's Complaint is dismissed. The docket reflects that the Report and Recommendation was mailed to pro se Defendant on June 16, 2016, but was returned as undeliverable and unable to forward. A party has a duty to keep the Court informed of his address. It is Defendant's responsibility to notify the Court of any change in his address. See Lewis v. Conners Steel Co ., 673 F. 2d 1240 (11th Cir. 1982) (stating that it is " fair and reasonable for ſa party ] to assume the burden of advising. . . of address changes or to take other reasonable steps to ensure delivery. . . to his current address .") . There is nothing in the record reflecting any change in Plaintiff's address and the proofs of service filed subsequently have the same mailing address for Plaintiff. In any event, the Magistrate Judge's legal conclusions have been reviewed de novo and are not wrong. Therefore, any failure to consider objections would be harmless. See Braxton v. Estelle, 641 F. 2d 392, 397 (5th Cir. Unit A Apr, 1981) (per curiam) (holding that because the district judge could assess the merits of the petition from its face, " the district court's failure to review objections by the petitioner, who may have not received notice of the R & R, was harmless (quotation omitted)) . PagelD 60 A district court may accept, reject or modify a magistrate judge's report and recommendation. 28U.S. C. § 636 (b) (1) . In the absence of specific objections, there is no requirement that factual findings be reviewed de novo, and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 9 636 (b) (1) (C); Garvey v. Vaughn, 993 F. 2d 776, 779 n. 9 (11th Cir. 1993) . Legal conclusions are reviewed de novo, even in the absence of an objection. See LeCroy v. McNeil, 397 Fed. App ' x. 554, 556 (11th Cir. 2010) (citing United States v. Warren, 687 F. 2d 347, 348 (11th Cir. 1982)); Cooper - Houston v. S. Ry. Co ., 37 F. 3d 603, 604 (11th Cir. 1994) . Accordingly, The Report and Recommendation (Dkt. 5) is APPROVED and ADOPTED as the opinion of the Court for all purposes, including for appellate review. Plaintiff's request to proceed in forma pauperis (Dkt. 2) is DENIED without prejudice and her Complaint (Dkt. 1) is DISMISSED without prejudice. Plaintiff may file an amended complaint within twenty (20) days, which must be accompanied by either a renewed motion to proceed in forma pauperis or the filing fee. Failure to file an amended complaint will result in this case being dismissed without further notice. h DONE AND ORDERED this 17 day of July, 2016. Mittern JAMES D. WHITTEMORE United States District Judge Copies to: pro se Plaintiff Counsel of Record